United States: Fifth Circuit Refines The Test For Seaman Status In Jones Act Claims: Will The Ninth Circuit Follow?

Whether an injured worker is a seaman entitled to remedies under the Jones Act or a land-based maritime worker generally covered under the Longshore and Harbor Worker's Compensation Act (LHWCA) has vexed courts and practitioners alike since Congress enacted the two Acts in the 1920s. See Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 785 (9th Cir. 2007). Which Act applies has significant implications for the parties involved, as the remedies for the plaintiff and the liabilities for the employer differ significantly. See generally Paul M. Sterbcow, Maritime Rights and Remedies Revisited, 18 Loy. Mar. L. J. 313 (2019). The Fifth Circuit in Sanchez v. Smart Fabricators of Texas, L.L.C., 997 F.3d 564 (5th Cir. 2021) (en banc) is the latest in a long line of courts to attempt to untie this Gordian knot.

Three decades before Sanchez, the U.S. Supreme Court issued a trio of decisions clarifying who qualifies as a seaman and who does not. McDermott Int'l, Inc. v. Wilander, 489 U.S. 337 (1991); Chandris, Inc. v. Latsis, 515 U.S. 347 (1995); Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (1997). The Fifth Circuit and the Ninth Circuit distilled the holdings in these cases into a two-pronged test for determining seaman status: (1) the employee's duties must contribute to the function of the vessel or to the accomplishment of its mission; and (2) the employee must have a connection to a vessel in navigation that is substantial both in duration and nature. Sanchez, 997 F.3d 564; Keller Foundation/Case Foundation v. Tracy, 696 F.3d 835 (9th Cir. 2012).

In analyzing the "substantial nature" element of the second prong, both the Fifth Circuit and the Ninth Circuit placed significant reliance on whether the employee's work exposed him or her to the "perils of the sea." E.g., Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 934-935 (5th Cir. 2014), overruled by Sanchez, 997 F.3d 564 (evaluating whether the employee was sufficiently exposed to "perils of the sea" when determining whether the employee satisfied the "substantial nature element of the seaman test's second prong); Scheuring, 476 F.3d at 786-787 (same).

In Sanchez, however, the Fifth Circuit held that its earlier cases placed too much emphasis on the perils-of-the-sea test for determining whether the substantial nature element was satisfied. 997 F.3d at 573-5744. The Fifth Circuit concluded that a careful review of McDermott, Chandris, and Papai compels the conclusion that "[s]imply asking whether the worker was subject to the 'perils of the sea' is not enough to resolve the nature element." Id. While factoring in the perils of the sea may be "one of the considerations" in determining seaman status, "it is not the sole or even the primary test." Id. at 573.

Instead, the Fifth Circuit concluded that the following inquiries should be made when considering whether a plaintiff-employee has satisfied the substantial nature element: (1) Does the worker owe his allegiance to the vessel, rather than simply to a shoreside employer? (2) Is the work sea-based or involve seagoing activity? (3)(a) Is the worker's assignment to a vessel limited to performance of a discrete task after which the worker's connection to the vessel ends, or (b) Does the worker's assignment include sailing with the vessel from port to port or location to location? Id. at 574.

In Sanchez, these additional inquiries made all the difference. The en banc court reversed the panel decision and held that Mr. Sanchez failed to carry his burden of proving he was a seaman under the substantial nature element of the seaman test's second prong. Even though Mr. Sanchez worked aboard a vessel in navigable waters (a docked jack-up drilling barge), his duties as a welder "did not take him to sea," his work on the vessel while docked "was not of a seagoing nature," and after he finished his work "he was not going to sail with the vessel." Id. at 575.

It remains to be seen whether the Ninth Circuit will adopt the Fifth Circuit's gloss on the substantial nature element, but Ninth Circuit practitioners will undoubtedly confront Sanchez in cases where an employee's seaman status is a close call.

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